Bristol‐​Myers Squibb Co. v. Connors

March 24, 2021 • Legal Briefs
By Misha Tseytlin, Kevin M. Leroy, and Ilya Shapiro

Hawaii sued Bristol‐​Myers Squibb (BMS) and Sanofi for failing to make the untrue statements that their life‐​saving drug, Plavix, is less effective for Asian and Pacific Islander patients. It’s not just the companies that believe these statements to be false and controversial; the scientific community strongly agrees. Prominent cardiologists have criticized the disclaimer requirement and a growing body of evidence shows that Plavix works as well, if not better, for patients of Asian descent. In seeking to compel this speech in an area of scientific controversy—and punish its absence—Hawaii discriminates based on the speaker (by targeting only pharmaceutical companies) as well as the content and viewpoint expressed.

What’s worse, the suit appears to have been initiated to achieve private financial gain. It was planned and marketed by private contingency‐​fee lawyers who succeeded in selling their services to the state, which only pays if it wins. In a traditional enforcement matter, government attorneys have a professional and ethical obligation to serve the public interest—not necessarily to win the case, but to make a sound use of public resources and see that justice is done. Here, instead, the higher the verdict the more the lawyers make without regard to medical consequences or constitutional values.

BMS and Sanofi raised these concerns, but their First Amendment claims were dismissed by the district court. The Ninth Circuit affirmed by relying on a doctrine called Younger abstention. Younger abstention bars federal courts from hearing civil rights tort claims brought by a party that is being prosecuted for a matter arising from that same claim in a state court. Because the federal courts’ “obligation to hear and decide a case” within their jurisdiction “is virtually unflagging,” the Supreme Court recently placed further limits on the use of Younger abstention. The Court clarified that the only “civil enforcement proceedings” that come within Younger’s scope are those “akin to a criminal prosecution” in “important respects.” Yet the Ninth Circuit ignored this command and instead found that “on its face” the enforcement proceeding fell within the class of cases to which Younger applies because it had been brought under a consumer protection statute and sought civil penalties and punitive damages.

Cato, joined by the Rutherford Institute, have filed a brief supporting BMS’s petition to the U.S. Supreme Court. We argue that the Court should require that federal courts consider the specific characteristics of an underlying state‐​court civil proceeding to determine whether it is truly akin to a criminal prosecution that warrants Younger abstention. Moreover, the Ninth Circuit wrongly held that the state’s use of private counsel to bring a case is irrelevant to whether Younger applies. A state’s reliance on private, contingent‐​fee counsel is an important—and often dispositive—factor counseling against Younger abstention because the use of such financially interested lawyers in an actual criminal case would raise grave constitutional concerns.

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About the Authors
Misha Tseytlin
Kevin M. Leroy
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.